2025 uS Executive Orders, DEI, and Employment: how In-house Lawyers can Assist the Business
Remind me, what’s an executive order?
Executive orders are regulations ordered by the president of the United States that direct government firms and officials to take particular actions. While they are not laws, they have the force of law and impact how existing laws are carried out or enforced.
Executive orders impact the agencies of the executive branch and therefore do not need the approval of Congress. They must be within the president’s constitutional authority and might be challenged in court if deemed unconstitutional.
Executive orders may be rescinded, reversed by future presidents, or challenged in court, and enforcement priorities can change during any administration.
The new administration’s actions have significant impacts beyond executive orders. For more on mitigating danger, worldwide companies can take new opportunities by staying nimble.
Implications of the executive orders for DEI efforts and employment in private-sector organizations
On Jan. 21, President Trump released “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which reverses various previous executive orders and memoranda, consisting of Executive Order 11246 (EO 11246) checked in 1965 by President Lyndon B. Johnson.
EO 11246 required every federal government agreement to consist of a declaration that the contractor will not victimize any employee or applicant for employment based upon race, creed, color, or national origin.
Despite President Trump’s new executive order, the underlying federal anti-discrimination law stays the same for private-sector employees.
However, the executive order signals that there might be altering enforcement priorities in the brand-new administration. The order directs all federal agencies to “combat unlawful private-sector DEI preferences, mandates, policies, programs, and activities.”
In December 2024, President-elect Trump tapped Harmeet K. Dhillon to lead the Justice Department’s civil liberties office, indicating his record of “taking legal action against corporations who use ‘woke’ policies to discriminate versus their employees.”
In addition to revoking EO 11246, the Jan. 21 executive order instructs each firm of the federal government to recognize “up to 9 potential civic compliance investigations” of private sector entities within 120 days of the order – by May 21, 2025.
The private sector subject to these investigations include openly traded corporations, large nonprofits – consisting of bar associations – big foundations, and universities whose endowments exceed US$ 1 billion.
Organizations that may be targeted should ask:
– What is my organization’s threat tolerance?
– How will workers react to the business’s actions?
– How will customers and stakeholders react?
What in-house counsel needs to consider:
Assess any federal agreements and grants
– Determine if they contain any terms or conditions associated with DEI that might conflict with current laws and policies
Review your company’s existing DEI policies to understand your danger
– Get ready for increased analysis and possible civil compliance examinations
Document, document, file
– Hiring and recruitment processes
– Performance examinations and promo decisions
– Training materials and participation records
– Any modifications to DEI policies
Implications for federal contractors
Among other measures, the Jan. 21 Executive Order requires the heads of federal agencies to consist of particular terms in every agreement or grant award:
– “A term needing the contractual counterparty or grant recipient to concur that its compliance in all respects with all appropriate Federal anti-discrimination laws is material to the federal government’s payment decisions for purposes of section 3729( b)( 4) of title 31, United States Code”; and
– “A term needing such counterparty or recipient to accredit that it does not operate any programs promoting DEI that breach any relevant Federal anti-discrimination laws.”
Section 3729 of title 31 of the United States Code is an arrangement of the US False Claims Act, a federal law that imposes civil penalties on those who make false claims to the federal government in order to affect the payment or receipt of money or home.
The accreditation requirement carries a possible danger of litigation for federal professionals under the False Claims Act. In-house legal representatives at federal contractors thus have a particular interest in guaranteeing their company’s policies, procedures, practices, communications and content, are examined. Assess if adjustments are needed to reduce the threat of litigation.
Executive orders targeting prohibited migration
President Trump’s initial flurry of executive orders included lots of – such as the Jan. 20 executive order “Protecting the American People Against Invasion” – targeted at restricting prohibited migration and deporting illegal immigrants. The orders require enforcement actions by federal agencies versus prohibited immigration.
In-house attorneys need to consider reviewing their company’s work eligibility confirmation process. They may likewise wish to think about whether the company is gotten ready for reacting to an I-9 audit or a worksite enforcement action (or raid) by immigration enforcement firms.
Sectors that may be especially impacted consist of farming, hospitality, and other industries such as building and construction. From 2020-2022, 42 percent of crop farmworkers held no work authorization, according to the US Department of Agriculture. The American Immigration Council approximates that more than one million undocumented immigrants work in hospitality, representing 7.1 percent of the workforce.
In-house counsel have an important role to play in developing and guaranteeing consistent application of the Form I-9 and E-Verify guidelines the federal government utilizes to execute and impose immigration law, shares John W. Mazzeo, AGC, director referall.us of I-9 and E-Verify compliance for Vertical Screen, Inc., in a 2024 ACC Docket post.
Take a look at informative lists of factors to consider relevant for in-house lawyers on the topic of I-9 audits and worksite enforcement actions.
If an employer does not cooperate with a civil administrative warrant provided by US Immigration and Customs Enforcement (ICE), there is a risk that the firm might start an I-9 audit if they felt an employer was obstructing their need to apprehend a non-citizen staff member, or in some cases obtain a criminal warrant from a judge if actions support it.
Steps in-house counsel ought to think about:
– Determine how lots of workers could potentially be impacted
– Review your company’s work eligibility confirmation process
– Ensure your company’s procedure is recorded and defensible
– Implement and implement clear policies
– Monitor legal advancements, consisting of litigation and enforcement assistance
Mitigate risk, remain nimble, and seize brand-new opportunities
The current executive orders will substantially impact global companies. Legal departments and in-house counsel will need to assist their organizations comprehend and adapt to modifications, making sure compliance or litigating when suitable.
Many of the new administration’s choices will play out over the coming months, consisting of brand-new executive orders and legal obstacles. The Docket will continue to keep an eye on advancements. Global in-house attorneys should prepare for quick advancements related to:
Trade and tariffs. On Feb. 1, President Trump ordered the imposition of a 25-percent tariff on imports from Canada and Mexico, and 10-percent extra tariffs on imports from China. The previous two were both delayed by a month as the administration participates in negotiations. Meanwhile, China has actually started its own retaliatory steps on US items. He had actually formerly revealed his intent to impose 25-percent intensifying tariffs on Colombia (an action that was eventually not taken).
Technology and intellectual property. Among the president’s first actions was to rescind the previous administration’s AI executive order. The new administration likewise extended a grace period for TikTok’s approaching restriction, sending out waves throughout the innovation sector, both in the United States and abroad.
Energy, environment, and health. The president also withdrew the United States from the Paris Climate Agreement and the World Health Organization, putting an early focus on American energy independence and far from the previous administration’s international sustainability efforts.
Steps in-house counsel must think about:
– Assess the effect of prospective tariff boosts on supply chain and service continuity.
– Assess the organization’s dependency on social networks platforms, such as for adremcareers.com marketing functions, and the potential requirements to backup social networks data and properties in the occasion their preferred platform ceases to be readily available.
– Consider how developments in the new administration’s technique to environmental, sustainability and governance issues might impact the organization’s ESG technique.
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